Court of Appeals of Texas, Fifth District, Dallas
METHODIST HOSPITALS OF DALLAS D/B/A METHODIST HEALTH SYSTEM AND D/B/A METHODIST DALLAS MEDICAL CENTER, Appellant
JESUS NIETO, RICHARDO FELIPE NIETO, JESSE NIETO, AND ORLANDO NIETO, EACH INDIVIDUALLY AND AS HEIRS OF THE ESTATE OF MARY JESSIE ALVAREZ, DECEASED, Appellees
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-02115
Justices Myers, Osborne, and Nowell
withdraw our opinion and judgment issued August 22, 2019, and
substitute the following opinion and judgment in their place.
consolidated interlocutory appeals, appellant Methodist
Hospitals of Dallas d/b/a Methodist Health System and d/b/a
Methodist Dallas Medical Center (Methodist) challenges the
trial court's orders denying its first and second motions
to dismiss the health care liability claims of appellees
Jesus Nieto, Richardo Felipe Nieto, Jesse Nieto, and Orlando
Nieto, each individually and as heirs of the estate of Mary
Jessie Alvarez, deceased (the Nietos). Methodist argues that
the trial court abused its discretion in denying the motions
to dismiss because the expert reports were so lacking in
substance they constituted "no report" at all, and
because the amended expert report did not address how and why
the actions or inactions of Methodist and its nurses caused
the premature discharge of Mary Jessie Alvarez (Mrs.
Alvarez). We affirm.
and Procedural History
February 15, 2016, Dr. Theresa Patton, M.D., assisted by Dr.
Melodi Reese-Holley, M.D., performed a robotic-assisted total
laparoscopic hysterectomy with bilateral salpingectomy on
Mary Jessie Alvarez at the Methodist Dallas Medical Center.
The procedure began at 12:39 p.m. and ended at 2:40 p.m., and
following post-operative recovery, Mrs. Alvarez was
discharged at 8:30 p.m. She continued to experience severe
pain after arriving home, and the next day her husband called
the doctors' surgical practice, Kessler Women's
Healthcare, and complained that his wife was suffering severe
post-surgical pain. Dr. Reese-Holley instructed Mr. Alvarez
to double his wife's pain medication. Mrs. Alvarez's
family discovered her in a state of "extreme
distress" early on the morning of February 17, 2016.
After she was transported to Arlington Memorial Hospital,
resuscitative efforts failed and Mrs. Alvarez was pronounced
dead at 9:24 a.m. on February 17, 2016. The cause of death
was peritonitis and small bowel perforation.
Alvarez's husband and children (the Nietos), the
appellees in these consolidated appeals, filed suit against
the two doctors who performed the surgery, their surgical
practice, and appellant Methodist. The Nietos pleaded
negligence causes of action against Dr. Patton, Dr.
Reese-Holley, Kessler Women's Healthcare, and Methodist.
The Nietos' negligence claims against Methodist included
both direct and vicarious claims. The Nietos alleged that
Methodist's "acts and/or omissions" were
"singularly and/or severally a proximate cause of the
occurrence in question and resulted in Decedent's death
and damages to Plaintiffs." The Nietos asserted both
survival and wrongful death claims and sought actual damages.
Nietos timely served expert reports prepared by Dr. Steven
McCarus, M.D., and Patricia Spellman-Foley, R.N. Methodist
filed objections to these expert reports and moved to
dismiss, arguing they were so deficient regarding causation
they constituted "no report" at all as to
Methodist. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b). The trial court held a hearing on the
motion to dismiss and it signed an order on August 27, 2018,
granting the Nietos a thirty-day extension of time to cure
any deficiencies. See id. § 74.351(c). The
trial court's order granting the thirty-day extension is
the subject of Methodist's first accelerated
interlocutory appeal, docketed under appellate cause number
Nietos timely filed an amended report from Dr. McCarus, and
Methodist again challenged it as inadequate and moved to
dismiss. The trial court held a hearing on the second motion
to dismiss and on October 29, 2018, it signed an order
denying Methodist's second motion. Methodist filed
another accelerated, interlocutory appeal from that order,
and this second appeal was originally docketed under
appellate cause number 05-18-01381-CV.
April 10, 2019, this Court consolidated appellate cause
number 05-18-01381-CV into cause 05-18-01073-CV, and
transferred all documents in cause 05-18-01381-CV (which is
now a closed case) into cause number 05-18-01073-CV.
First Motion to Dismiss
first interlocutory appeal, Methodist asserted that the trial
court abused its discretion in denying Methodist's first
motion to dismiss because the Nietos' expert reports
failed to provide a causal link between any acts or omissions
by Methodist or its staff and the injuries allegedly
sustained by Mrs. Alvarez. Hence, the reports were so lacking
in substance they constituted "no report" as to
Methodist, and the trial court had no discretion but to
dismiss the case with prejudice.
review a trial court's decision denying a motion to
dismiss based on the adequacy of an expert report for an
abuse of discretion. Abshire v. Christus Health Se.
Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). A
trial court abuses its discretion if it acts without
reference to guiding rules or principles. Van Ness v.
ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).
In analyzing a report's sufficiency under this standard,
we consider only the information contained within the four
corners of the report. Abshire, 563 S.W.3d at 223.
74 of the Texas Civil Practice and Remedies Code, also known
as the Texas Medical Liability Act (TMLA), requires health
care liability claimants to serve an expert report upon each
defendant not later than 120 days after that defendant's
answer is filed. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a); Abshire, 563 S.W.3d at 523. Under the
Act, a defendant is entitled to dismissal of a healthcare
liability claim if, within 120 days of filing suit, the
defendant is not served with an expert report showing the
claim has merit. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a), (b); Post Acute Medical, LLC v.
Montgomery, 514 S.W.3d 889, 892 (Tex. App.-- Austin
2017, no pet.). The Act has specific requirements for an
adequate expert report and requires "an objective good
faith effort" be made to comply with the requirements,
but it also authorizes the trial court to grant one
thirty-day extension for the claimant to cure deficiencies in
an otherwise timely filed expert report. See id.
§ 74.351(c), (1); Post Acute Medical, 514
S.W.3d at 892. "The trial court should err on the side
of granting the additional time and must grant it if the
deficiencies are curable." Post Acute Medical,
514 S.W.3d at 892 (footnotes omitted).
74.351 distinguishes between a report that is timely served
but deficient and when no report is served."
Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex.
App.-Fort Worth 2017, no pet.). "If a report is timely
served but deficient, the trial court may grant an extension
to cure the deficiency, and no appeal lies from the extension
order." Id. (citing Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.351(c), 51.014(a)(9); Ogletree
v. Matthews, 262 S.W.3d 316, 320-21 (Tex. 2007));
see also Taton v. Taylor, No. 02-18-00373-CR, 2019
WL 2635568, at *8 (Tex. App.-- Fort Worth June 27, 2019, no
pet.) (mem. op). If, however, no report "is timely
served, the trial court has no option but to dismiss the
claim, and an appeal lies from the trial court's failure
to do so, even if it grants an extension."
Villareal, 526 S.W.3d at 636 (citing Tex. Civ. Prac.
& Rem. Code Ann. §§ 74.351(b), 51.014(a)(9);
Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009)).
distinguishing between a deficient report and no report at
all, we are guided by the Texas Supreme Court's decision
in Scoresby v. Santillan, 346 S.W.3d 546 (Tex.
2011). "While the Act thus contemplates that a document
can be considered an expert report despite its deficiencies,
the Act does not suggest that a document utterly devoid of
substantive content will qualify as an expert report."
Id. at 549. The court has established the following
standard for determining whether a deficient report is
We conclude that a thirty-day extension to cure deficiencies
in an expert report may be granted if the report is served by
the statutory deadline, if it contains the opinion of an
individual with expertise that the claim has merit, and if
the defendant's conduct is implicated. We recognize that
this is a minimal standard, but we think it is necessary if
multiple interlocutory appeals are to be avoided, and
appropriate to give a ...